Barabay Property Holding Corporation VS Boh Brothers Construction, L.L.C. d/b/a Boh Brothers Construction
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2007 CA 2005 BARABAY PROPERTY HOLDING CORPORATION VERSUS BOH BROTHERS CONSTRUCTION CO L Lc B D A BOH BROTHERS CONSTRUCTION Judgment Rendered May 2 2008 rA Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge Louisiana Case No 480 007 The Honorable Curtis A Counsel for Plaintiff Appellee Michael D Ferachi Kyle A Ferachi Baton Calloway Judge Presiding Barabay Property Holding Corporation Rouge Louisiana Martin A Stern Counsel for Defendant Appellant William D Shea Boh Brothers Construction Co Lauren J L LC Delery Baton Rouge Louisiana BEFORE d b a Boh Brothers Construction GAIDRY McDONALD AND McCLENDON JJ iInt drs I UVrC J6 A rMfhl tile lJ 5SrJ K010CJ1 5 GAIDRY J A contractor its removal and appeals disposal of a judgment against it for damages arising from of excavated soil from public during the course reasons we For the project property s following affirm the judgment a construction landowner a FACTUAL BACKGROUND AND PROCEDURAL HISTORY The plaintiff Barabay Property Holding Corporation Barabay 4 000 approximately subject to a acres of land in Jefferson Parish The property personal servitude for underground public Jefferson Parish granted by Barabay in 1997 owns was utilities in favor of The servitude contained the following language Grantee over Jefferson Parish material and all stakes or shall promptly remove posts which may have been put into the ground and generally restore the surface of the nearly its original condition as may be practical water bidder Construction prepared by water large line that would pass Boh Brothers property line the was amount on was the through the servitude ultimately awarded the water line contract Dresser McKee being placed underground excavation was contract as was responsibility to Inc plans As the and necessary between Jefferson Parish and Boh Brothers s s the lowest excavated and later removed from the site It shall be the contractor an Barabay on project proceeded according engineering firm of Camp of soil The Brothers land to Jefferson Parish solicited bids for the construction of In 1999 underground all left by a Boh provided to haul and stack all designated salvageable material at area designated by authorized representative No direct payment Materials not designated to be salvaged shall be disposed of off site unless otherwise directed by engineers No direct payment By resolution adopted Council on January formally accepted the project as 2 10 2001 complete the Jefferson Parish Barabay instituted this litigation by filing Boh Brothers in East Baton against Brothers answered petition the contributory negligence The pleading April Brothers parties proceeded Barabay failure s its limited 9 2773 its Barabay damages judgment by Boh Brothers filed s November 8 2004 and on The a was request for a connection with the the merits was On by status parties subsequently submitted a the trial heard was December 10 2004 Barabay filed denied on action based upon Boh statutory immunity under La R S 9 2771 The motion on s discovery and the next significant undertake to R S 9 2771 mitigate to asserting the and RS seeking the dismissal of Barabay 2004 s under La motion for summary was a 20 and liability denying status surety upon January 12 2001 Boh on immunity under La affirmative defenses of statutory liability based Rouge Parish petition for damages a conference joint pretrial pretrial conference held on 25 2007 Boh Brothers filed addressed the issue of its claimed statutory damages claimed estoppel in the and by Barabay event the trial On June 19 2007 offering Barabay trial on then s statement April and order in The trial 12 2005 any testimony or Following a on pretrial brief in which immunity the nature a of motion in limine it of the equitable statutory seeking the affirmative defense of to estoppel other evidence in support of that defense was set for hearing on the morning conference in chambers the trial Barabay granting its motion proceeded a rejected its defense Barabay filed motion in limine the merits in favor of December 15 2004 alternate defense of an court preclude Boh Brothers from asserting and from on scheduled for June 27 2007 May immunity by judgment signed court At the conclusion of 3 in limine Barabay s The trial on of the court ruled the merits presentation of evidence Boh Brothers moved for action on the grounds that Brothers deviated from the immune from motion evidence no was Barabay introduced to s cause La R S RS La 9 2771 9 2771 did not The trial of prove that Boh project plans and specifications and thus it liability under ruling that dismissal of involuntary an court was denied its apply under the circumstances At the conclusion of the trial the trial court stated that it would rule in favor of Boh Brothers liable for the Barabay finding representing the value of removed from Barabay signed 6 2007 on July s 5 802 cubic approximately property Its Boh Brothers of sum yards 58 020 00 of excavated soil judgment reflecting that ruling now was appeals ASSIGNMENTS OF ERROR Boh Brothers contends that the trial court committed error in the following respects I The trial to court erred to by refusing permit Boh Brothers to offer the enlarge estoppel as a pleadings defense to plaintiffs claims 2 The trial court erred in concluding that Boh Brothers was not entitled to statutory contractor immunity even though it constructed the water line in compliance with the plans provided to it by the Project s engineers 3 The trial court s conclusion that Boh Brothers for the removal of the soil Barabay offered no was manifest was error liable because proof ofBoh Brothers liability DISCUSSION The Estoppel is in a defendant an Affirmative Defense ofEstoppel affirmative defense that s answer Procedure article 1154 See La C C P art must be 1005 affirmatively pleaded Louisiana Code of Civil provides by the pleadings are tried by express or implied consent of the parties they shall be treated in all respects as if they had been raised by the pleading Such amendment of the pleadings as may be necessary to cause them When issues not raised 4 raise these issues may be made upon motion of any party at any time even after judgment but failure to so amend does not affect the result of to conform to the evidence and the trial of these issues to objected to at the trial on the ground that it is not within the issues made by the pleadings the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfY the court in that the admission of such evidence would maintaining may If evidence is grant a his action continuance or to defense on enable the prejudice the merits The objecting party him court to meet such evidence A trial court has great discretion to admit to an subject to by the 7 10 94 a trial to Muscarello pleadings encompassed by 644 So 2d 846 849 court It has likewise been pleadings Id 93 2081 Boh Brothers contends that the defense of estoppel at p the objection to contractor Jefferson Parish and the Barabay on 1st Cir App 1154 to allow art and that party a 5 644 So 2d at 849 Barabay had notice of the evidence such evidence included the as during deposition Barabay Inc that he observed and did the removal of the soil Brothers also contends that the La generally recognized testimony of Mark Gagliano of Coastal Environments management services pleadings general issues raised 4 5 pp has much discretion under La C C P amend his supporting 93 2081 Ayo v disallow evidence scope of the issues and objection based upon the determine whether evidence is to or the construction not s land express Boh project language of both the servitude in favor of water line construction notice that excavated soil not re used contract as served to put fill material would be removed from the property Barabay over was six years first Gagliano on prior brought s the other hand to to emphasizes that its petition the time the issue of estoppel its attention and that of the trial deposition was given on 5 July 31 2003 as a was filed well potential defense court Although Boh Brothers Mr never sought leave estoppel to in the formally amend its interval between that lengthy pretrial brief on May 25 2007 estoppel nor its factual basis order pretrial in its art pretrial motion testimony limine in on We first observe that evidence Anderson 642 So 2d 208 4 8 94 affirmatively or 07 0450 attempt a a issue of object 214 legal memorandum Thus Barham pleadings v to a trial court s amended to raise not 93 1102 p 4 La memorandum preempt an issue or or an issue Kozak 02 2325 p discretion in granting pleading App 1st Cir brief is not defense that A a proper must 17 timely objection a failure not raised La to move be other pleading App 1st Cir 876 So 2d 87 Barabay s we motion to an for an by the pleadings by Boh Brothers and its failure answer or a See MJ Farms Ltd V Exxon Mobil is fatal to the late assertion of the defense an order brief is 874 So 2d 228 242 writ denied 04 0930 La 6 4 04 defense in a the submission of any in or a 956 So 2d 573 4 27 07 the to to estoppel Allstate Ins Co Arceneaux amendment Barabay filed month before trial enlarge the pleadings coupled with to portion of the s after Boh Brothers broached the issue of specially pleaded La of its at trial vehicle with which procedural Corp v filing contested issues of fact and law June 18 2007 to to the reference or and the deposition forth in Boh Brothers set brief less than enlargement of the pleadings or was 1551 Rather pretrial raise the affirmative defense of Likewise neither the affirmative defense of stating its contentions and the See La C c P estoppel answer to find no in imine 12 3 04 Given to assert the abuse of the and refusing to permit the introduction of evidence that would have enlarged the pleadings This assignment of error has Contractor no merit Immunity under La Louisiana Revised Statutes 9 2771 6 R S 9 2771 provides as follows No contractor building including but contractor limited defined in R S as liable for destruction not to residential a shall be 37 2150 1 9 of or defects in any work constructed or under construction by him if he constructed or is constructing the work according to plans or specifications furnished to or deterioration him which he did make not and if the destruction deterioration or to or cause defect was be made due to any This insufficiency of the plans or specifications provision shall apply regardless of whether the destruction deterioration or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner The provisions of this Section shall not be subject to waiver by the contractor fault or Emphasis supplied immunity is Tort specially pleaded in a special an answer and for which the has the burden of proof See Walls La 740 So 2d 1262 9 8 99 affirmative defense that or v American 1267 asserting the defense one immunity strictly construed against the party claiming the immunity 93 0062 afforded La by 11 4 94 8 p 635 So 2d 188 La R S 9 2771 extends to third 98 0455 p 6 Optical Corp Further statutes must Weber v be State While the tort immunity claims the 193 party be must contractor invoking that defense has the burden of proving its essential elements Morgan Cir Lafourche Recreation v 6 21 02 So 2d 716 822 Dist No 5 01 1191 721 22 While a pp 7 8 La App 1st not the is contractor guarantor of the sufficiency of plans and specifications drawn by another it cannot exercise rely blindly ordinary contractual on toward care obligations plans and specifications Id third 01 1191 Donald Abadie Boh Brothers parties at p s backfill to too cover much organic the water line required under the contract its fulfilling in the fulfillment pipe superintendent testified content duty of its was tree not salvageable limbs etc to that the material be used Boh Brothers therefore contends that it plans and specifications 7 to 7 822 So 2d at 721 excavated soil it removed from the property in that it had in to as was dispose of the soil off site On the other hand testified that he used that basis expert civil s unclassified fill even limbs and grass had as tree the Barabay to a field dirt with organic or market value of 10 00 per cubic content such yard and that calculate the value of the excavated soil removed from property The RS La defines public a 38 2211 or leased or Parish and Boh Brothers within the work work as the erection construction project removal of the excavated soil alteration of immovable or construction Law as alteration immovable property owned This defmition public entity a incorporate the processes of construction the water line meaning of the Public Bid repair of any public facility by clearly Louisiana Revised Statutes 38 2211 A 12 et seq public a improvement used between Jefferson contract contemplated or engineer Leonard Chauvin well as seems to broadly the end result including the component Thus process of might arguably constitute the construction used property leased or by Jefferson Parish Although the removal of the excavated soil might conceivably fall within the scope of the public work contemplated by the for purposes of the Public Bid Law that with the public term work time the term work public Parish 1958 and affect the work or Hosp Emphasis supplied is not used in La R S 9 2771 in La R S 38 2211 A physical improvement Lafourche as term was 12 was work The current defined in the jurisprudence No 3 323 Louisiana Revised Statutes 9 2771 as used therein 8 The synonymous definition of as a to that building Wallace Stevens Inc So 2d 794 subsequent amendments in 1960 and term necessarily enacted in 1991 Prior otherflXed construction Dist contract at issue 2001 context 796 was 1975 first enacted in did not of the La v term change or within the any work constructed statutory language he constructed or is La v as used in reference to obviously refers product to him if by the building of the object or ordinary meaning of the plural public works term Mgmt of Cent See Waste App 3rd Cir 11 13 La Beall 03 1710 pp under construction the end constituting This result accords with the contract works the work constructing other fixed construction or or 880 So 2d 923 8 4 04 930 31 by Boh Brothers did The excavated soil removed from the property not ultimately constitute construction material the work constructed summary conclude that the component we the excavated soil does constitute not defects in any work constructed Brothers to or immunity statutory it construction under or as was Boh by activity or destruction RS Brothers process of or under construction under La incorporated not In removing deterioration of to so as 9 2771 in or entitle Boh Its second assignment of error also lacks merit Adequacy of Proof of Defendant Boh Brothers contends that that Boh However and Brothers we acted note that it s failed Barabay Liability to wrongfully in removing was established present any evidence the excavated soil by the pleadings and pretrial order undisputed by the parties that Barabay owned the property at issue including its component soil and that Boh Brothers removed the excavated soil without was Barabay equivocal considered a construction and I See as at best eg or project Black permission on on s material its face the materials could Dictionary 1639 by the government Law dams built From factual a standpoint the evidence the issue of whether the excavated soil construction unsalvageable roads s or materials contract clause for purposes of the relating to reasonably be interpreted 8th ed 2004 for 9 public use was ever salvageable to refer to public works Structures such paid for by public funds and leftover construction and fill materials fabricating the place the material was a water water line not the And existing soil that even The trial Barabay breached its as well court implicitly was in removed in order to was in fact considered salvageable resolved those factual issues in toward the property care fulfilling its contractual duties owed review of the entire record was for the factual issue of whether Boh Brothers as duty of ordinary use contractor if the excavated soil the issue of whether the excavated soil fact issue favor of line supplied by the we find to no owner Jefferson Parish manifest error on Barabay in Based upon our the part of the trial court DECREE The judgment of the trial court and Barabay Property Holding Corporation Boh Brothers Construction appeal are assessed Company in favor of the against LLC AFFIRMED 10 the defendant is affirmed against the defendant appellant plaintiff appellee All appellant costs of this STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 2005 BARABAY PROPERTY HOLDING CORPORATION VERSUS B D A BOH BOH BROTHERS CONSTRUCTION CO L L C BROTHERS CONSTRUCTION dissents in McCLENDON J I agree with the future case only cases do not seem to Brothers acted fit within the coverage of the negligently or The trial salvageable and the court did not s materials at area not to support in question a finding was so the servitude and apply that immunity waiver its burden to in all inquiry Boh Brothers as The salvageable contract stack all to authorized language agreed presumably its to an I prove that Boh m authorized was designated salvageable and representative There is question between Boh Brothers to remove evidence in the record no plaintiff met its burden of proof to designated by statute a contract determination that the material designated by designated plaintiff met breached end the parish required material am not fixed constructions I also agree that the facts of this however agree that the cannot parish to in LSA R S 9 2771 will work term reasons issue of estoppel And while I analysis on the find that the to prepared part and assigns show that the dirt representative In addition by Barabav and the parish required the contractor to remove all left over material Thus in the absence of any Barabay the left or of over knowledge on proof of a designation by the part of Boh Brothers that excavated dirt to remain on site I do proved that Boh Brothers acted negligently found no proof of liability I a respectfully 2 or not of Barabay wanted believe that breached dissent representative a contract plaintiff Having
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